Punishment and disability
6.3 Case studies on the operation of the Convention in the context of disability
6.3.1 An examination of recent State party reports in the light of disability (a) Iceland – initial report (1997)
The State party report
Iceland’s initial report to the Committee was published in 1997.21 The report describes Icelandic legislation prohibiting torture and inhuman and degrading treatment. It presents an overview of the Icelandic constitutional order.
Paragraph 17 of the report states that the Constitutional Act No 97/1995 introduced many amendments and additions to the human rights provisions of the Constitution.
These measures were considered necessary because the provisions in effect until then had remained practically unchanged since 1874. In spite of the general consensus that Icelanders enjoyed fundamental rights in fact, since ordinary legislation and the unwritten principles of the Constitution secured them, this was no longer considered adequate. The amendments to the Constitution were intended to remedy the situation.
They added various new rights to those already provided for and added more detail to some of the older provisions. The rights added to the Human Rights chapter of the Constitution included a prohibition of torture and inhuman or degrading treatment or punishment (article 68, para. 2). Paragraph 20 of the report states that other rights provided for in the Constitution are the right to assistance in case of sickness or invalidity (article 76, para. 3).
The report states that the Prisons and Imprisonment Act No. 48/1988 contains general provisions on the treatment to be afforded to convicted prisoners. It specifies the rights they are to enjoy in prison and the extent to which their special needs should be taken into account if they suffer from physical ailments or mental deficiencies (para.
32). The Act also contains clear provisions on disciplinary measures and the conditions under which a prisoner may be subjected to solitary confinement.
The report further states that Icelandic law provides for the protection from torture of persons other than those deprived of liberty on account of suspicion of criminal conduct or serving a prison sentence (para 35). A risk of torture is also deemed to exist where an individual is placed in the personal charge of another individual, or where a person is dependent on another person by reason of his or her sensitive position. Situations that may be examined in this context include the treatment of children in homes or schools and of patients in hospitals.
Section 63 of the Act on Protection of Children and Adolescent Persons No. 58/1992 is applicable to persons who have a child or an adolescent in their care. It makes it a punishable offence to inflict ill-treatment on the child, to violate his/her mental or physical integrity or to endanger his/her life or health by negligence. Under Section 64 it is a criminal offence to punish, threaten or intimidate a child so as to endanger
21 CAT/C/37/Add.2.
his/her emotional or physical well-being. Section 52, paragraph 2, of the Act concerning the supervision of homes and institutions for children and adolescent persons also prohibits physical and mental punishment.
Patients are stated in the report to enjoy special protection against cruel, inhuman or degrading treatment under the Act on the Rights of Patients No. 74/1997, which provides, among other things, for the right of patients to decline medical treatment (Section 7). Under Section 10, the written approval of a patient is required for his or her participation in scientific experimentation concerning, for example, clinical trials.
Summary records
The Committee thanked Iceland for its generous donations in recent years to the United Nations Voluntary Fund For Victims of Torture.
In the summary record of a meeting held on 12 November 1998,22 the Committee members asked the four-member delegation from Iceland several questions relating to mental illness. The Committee wished to know more about the procedure applicable in the case of persons committed to hospital by order. The delegation replied that the law on legal capacity provided for hospitalization only for a limited duration and subject to strict conditions in the case of persons suffering form serious psychological illness or acute forms of alcoholism or drug addiction. According to the procedure applicable, the commitment order had to be backed by a medical opinion prescribing such a measure to protect the health of the person suffering from a severe mental illness or disorder. The stay in hospital could not exceed 48 hours, except by decision of the Ministry of Justice, which could extend it for up to 21 days on the advice of a psychiatrist. Only the courts could decide to extend the hospitalization beyond that limit. What was more, the Constitution guaranteed the right of any person deprived of freedom to ask a court to decide on the legality of the measure applied to him or her.
Fuller information was requested by the Committee about the concerns expressed by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment after its visit to Iceland. The European Committee had taken the view that the medical care provided for prisoners, particularly psychiatric services, was less than ideal and that the directives issued by the Ministry of Health were insufficient or vague. The Icelandic delegation replied that since the beginning of 1998 it was the Ministry of Health and no longer the Ministry of Justice that dealt with the health of prisoners. Since then the Icelandic authorities had improved the situation in most of the areas concerned, taking into account the European Committee’s comments about the organization of shifts for doctors and nurses and the assignment of psychiatrists.
More emphasis would be laid on preventive work, the promotion of healthy lifestyles and the treatment of prisoners with drug and alcohol problems.
A member of the Committee, asked whether there were any regulations in Iceland governing the use of physical restraint for controlling mentally ill persons. He requested particulars of cases of suicide that had occurred in the main prison. A member of the Icelandic delegation replied that he was unable for the moment to provide further information about the treatment of mentally ill persons. He added that
22 CAT/C/SR. 351.
there had been three suicides, not two, at Iceland’s main prison but that the third had occurred after the visit of the European Committee for the Prevention of Torture.
The Chairmen suggested that the Icelandic delegation should send the Committee a note at a later date on any regulations governing the use of physical restraint for controlling mentally ill persons.
The Committee’s conclusions and recommendations23
The Committee thanked the Government of Iceland for its frank cooperation and its representatives for the constructive dialogue. It considered that the initial report of the State party fully conformed with the Committee’s general guidelines for the
preparation of reports and provided detailed information on the implementation of each provision of the Convention. The Committee commended the Icelandic
authorities on the enactment of legislation and rules on the rights of arrested persons, on interrogations by the police and on the protection of persons committed to
psychiatric hospitals against their will. It expressed concern at the fact that torture was not considered a specific crime in the penal legislation of Iceland.
The concluding observations and recommendations make no reference to disability.
(b) Mexico – third periodic report (1996) 24 The State party report
Mexico’s third periodic report to the Committee was published in 1996.
It contains little direct reference to disability save in connection with article 14 of the Convention, which relates to the legal and other measures for obtaining fair and adequate compensation for victims of torture. Paragraph 155 of the report states that such measures are enumerated in article 10 of the Federal Act to Prevent and Punish Torture. Paragraph 158 states that there are physical and mental rehabilitation programmes for taking care of victims of offences.
Summary records
The summary record of the meeting on the Mexican report held on 30 of April 1997 makes no reference to disability.25
The Committee’s conclusions and recommendations 26
The conclusions and recommendations make no direct reference to disability.
(c) Russian Federation - second periodic report (1996) The State party report
23 CAT/C/SR.357.
24 CAT/C/34/ADD.2.
25 CAT/C/SR.285.
26 CAT/C/SR.289.
The second periodic report of the Russian Federation to the Committee was published in 1996.27
Disability is mentioned in the report in relation to article 1 of the Convention.
Paragraph 10 states that the regulatory instruments adopted between 1990 and 1995 contain a number of important provisions aimed at the further implementation of the norms of the Convention and also include legislation on psychiatric care and
safeguards for citizens during such care.
Disability is also mentioned in relation to article 4 of the Convention. Paragraph 23 states that the criminal law of the Russian Federation contains no norms directly providing for liability for torture. However, the Criminal Code of the Russian Federation does contemplate punishment for the unlawful placement of a person in a psychiatric hospital.
A further reference is made to disability under article 16 of the Convention. Paragraph 101 of the report states that an Act of the Russian Federation on psychiatric care and safeguards of citizens’ rights during such care came into force on 1 January 1993. The preamble to the Act states that one of its aims is to prevent the use of psychiatry for non-medical purposes which might be detrimental to the health, human dignity and rights of citizens. Under article 5 of the Act, persons “suffering from psychic
disorders” are guaranteed the right to respectful and humane treatment precluding any injury to their human dignity.
Summary records
The summary records make no reference to disability.
The Committee’s conclusions and recommendations
The conclusions and recommendations make no reference to disability.
(d) United Kingdom – third periodic report (1998) The State party report
The third periodic report of the United Kingdom to the Committee was published in 1998.28 It consists of an examination of existing laws in the United Kingdom that prohibit torture and their application in practice.
The British Government, recognizing that many NGOs and other independent bodies such as the Standing Advisory Committee on Human Rights in Northern Ireland had a significant role to play in developing ways of preventing torture and other forms of ill treatment, sought their assistance in preparing its report.
The focus of NGO concerns in this instance was the alleged ill-treatment of prisoners in Northern Ireland. Amnesty International had stated that it would inform the Committee about reported abuses of prisoners there. This stimulated considerable
27 CAT/C/17/ADD.15.
28 CAT/C/44/Add.1.
media attention from the British Broadcasting Corporation (BBC) and The Guardian newspaper. The presence of the media stimulated the Committee members to ask probing and difficult questions. It also heightened the sense of occasion. Reports appeared in The Independent, The Guardian, The Irish Times and Irish News and the meetings were covered by the BBC and Channel Four television.29
The State party report covers the United Kingdom and dependent territories.
Disability is mentioned in the context of article 11 (right to have a claim heard promptly and impartially).
Paragraph 66 of the report states that procedures are in place in all parts of the United Kingdom for ensuring that any individual who is considered to be at medical or psychiatric risk in police custody receives attention by a police surgeon and in urgent cases is sent to hospital. A study on self-harm and suicide by detained persons, illustrating possible preventive measures, had recently been circulated to all police forces in England and Wales. The report states in paragraph 106 that all asylum-seekers are seen by port medical inspectors on arrival. Any individuals detained are also offered a medical assessment within 24 hours of arrival at a detention centre. Port medical inspectors and immigration staff are trained to be alert to signs of stress and suicide risk.
The section of the report concerning the Crown dependency of Guernsey provides statistics relating to suicides of persons in custody, complaints against police officers and mental health staff and details of extraditions and deportations. One suicide occurred in 1995 and one in 1997 among persons detained in mental health hospitals.
Since the United Kingdom’s initial report, two deaths by suicide had occurred in La Moye prison in the Crown dependency of Jersey. Following the deaths, steps were taken by the prison authorities to improve provision for assessment of prisoners potentially at risk of self-harm, to provide extra training for prison staff on the
prevention of suicide, to modify cells at the prison where “at risk” prisoners were kept and to install closed circuit television monitoring in some cells.
A summary of the recommendations of Dr V Foot, health-care advisor to Her Majesty’s Prison Service in the North of England, is presented. She recommended, for example, that shared accommodation with or without continuous observation should be the normal approach to the management of suicidal prisoners until there was a psychiatric assessment and consideration of transfer under the Mental Health Act and that alternatives to the Segregation Unit should be urgently explored for mentally disturbed prisoners.
Summary records
Three meetings in all were held on the United Kingdom’s third periodic report. No reference is made in the summary records to disability. A member of the State party’s delegation reported that the United Kingdom had increased its contribution to the United Nations Voluntary Fund for Victims of Torture.30
29 Andrew Clapham, “Human rights reporting procedures: an NGO perspective”, The Future of UN Human Rights Treaty Monitoring, Alston and Crawford (eds.) p. 183.
30 CAT/C/SR.355.
The Committee’s conclusions and recommendations31
The conclusions and recommendations make no reference to disability.
(e) Initial report of the United States (1999) The State party report
The initial report of the United States to the Committee was published in October 1999.32 It contains a detailed review of United States laws that effectively proscribe torture. The constitutional prohibition of cruel and inhuman punishment also operates in the individual states.33 The report acknowledges problems concerning inhuman treatment at the hands of state authorities.
Disability is mentioned in several places: under articles 1 and 2, article 10 (the training and education of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment) and article 16 (prevention of cruel, inhuman or degrading treatment or punishment).
On ratification of the Convention, the United States made a declaration to the effect that in order to constitute torture, an act must be specifically intended to inflict severe physical or mental suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from, inter alia, the administration or application or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.
According to the report, the Eighth Amendment has been interpreted to apply, inter alia, to inadequate conditions of confinement resulting from an official’s deliberate indifference to identifiable human needs (such as continuous deprivation of food, warmth and exercise) (Wilson v. Seiter, 501 US 294, 1991) and to inadequate provision of medical, dental and psychiatric care, including an official’s deliberate indifference to an inmate’s serious medical needs which exceeds simple medical malpractice (Estelle v. Gamble, 429 US 97, 1976).
Paragraph 139 of the report, referring to conditions of detention, states that prisoners must be provided with nutritionally adequate food, prepared and served under
conditions which do not present an immediate danger to the health and the well-being of the inmates who consume it. Prisoners must be provided with medical care,
although an inadvertent failure to provide medical care does not rise to the level of a constitutional violation. Rather, it is the prison official’s “deliberate indifference” to a prisoner’s serious illness or injury that may constitute “cruel and unusual”
punishment.
31 CAT/C/SR.360.
32 CAT/C/28/Add.5
33 Stefanie Grant, “The United States and the international human rights treaty system”, The Future of UN Human Rights Treaty Monitoring, Alston and Crawford (eds.), p. 325.
Paragraph 146 of the report, referring to conditions in so-called “super-maximum”
security facilities, states that in January 1995 a United States district court found that the conditions prevailing at the Security Housing Unit in the California State
Department of Corrections’ Pelican Bay facility were in violation of the United States Constitution. The court held specifically that: (1) there was unnecessary and wanton infliction of pain and the use of excessive force; (2) that prison officials did not provide inmates with constitutionally adequate medical and mental health care; and (3) that the conditions of confinement in the security housing unit, which included extreme isolation and environmental deprivation, did not inflict cruel and unusual punishment on all inmates, but did impose cruel and unusual punishment on mentally ill prisoners.
According to the report (para. 155), the involuntary administration of anti-psychotic medication generally deprives an inmate of a constitutionally protected liberty interest and may also infringe the inmate’s rights under state law. If, however, the inmate has a serious mental illness or poses a threat to himself or others and such treatment is determined to be in his medical interest. such drugs can be lawfully administered.
Paragraph 218 concerning article 10 of the Convention (the education, training and information of law enforcement personnel) states that, in the military context, all personnel involved in custody, interrogation or the treatment of individuals subjected to any form of arrest, detention or imprisonment receive appropriate training
regarding the prohibition of torture and related maltreatment. This training is given to military police, interrogators, inspectors-general and psychiatric hospital staff.
Paragraph 225 states that the Torture Victims Relief Act, 1998 authorizes the President to provide assistance for the rehabilitation of victims of torture in the form of grants to treatment centres and programmes in foreign and domestic treatment centres.
Paragraph 267 states that a person subjected to torture in the United States has a legal right to redress and an enforceable legal right to fair and adequate compensation from the alleged offender. A victim may pursue several possible avenues of redress, depending on the specific circumstances. Medical and psychiatric treatment and rehabilitation are also available to victims of torture.
Under article 16 of the Convention which requires State parties to prevent acts of cruel, inhuman or degrading treatment or punishment, the report refers to the Civil Rights of Institutionalized Persons Act (CRIPA), which was originally enacted in the early 1980s. Under the Act, the United States Department of Justice is authorized to investigate public facilities (such as prisons, jails, nursing homes and institutions for the mentally retarded or mentally ill) in which it is believed that confined individuals are being deprived of their constitutional rights. This responsibility is being carried out through the Department’s Civil Rights Division, which by 1 June 1999 had initiated CRIPA actions against approximately 340 facilities, resulting in nearly 100 consent decrees governing conditions in about 200 facilities. According to paragraph 328, these investigations and consent decrees typically focus on protection from abuse and harm, provision of adequate medical and mental health services and proper sanitary and fire safety conditions. For example, in 1997 the Civil Rights Division entered into consent decrees with institutions in Wisconsin and Tennessee regarding the provision of proper medical treatment, use of restraints and use of psychotropic
medications on the mentally ill. In the same year the Civil Rights Division settled a lawsuit against a Montana State prison with an agreement ensuring that vulnerable inmates were protected from predatory inmates.
Paragraph 329 states that protection is also afforded by other statutes. In the Coleman v Wilson case, for example, a federal magistrate found that policies and practices of mental health care at most institutions within the California Department of
Corrections were so inadequate as to violate the federal Rehabilitation Act and the Eighth Amendment.
According to the report, informed consent is the touchstone of the United States Government’s approach to medical and scientific testing. Reference is made to a study by the United States National Bioethics Advisory Commission of the effectiveness of protections for human subjects participating in medical and scientific tests and of other relevant topics such as research involving individuals with diminished capacity.
Informed consent by a legally authorized representative allowing minors and
individuals who are mentally incapacitated to participate in research on mental illness and paediatric disease has been a particular focus of the debate in medical and
scientific communities in the United States. In December 1996 a New York State appellate court invalidated State regulations allowing surrogates to consent to certain experiments on behalf of minor children and those incapable of giving consent at state mental health facilities.
Summary records
At a meeting on the United States initial report on 10 May 200034. a member of the State party’s delegation described his country’s achievements, through its laws and policies, in the fight against torture and inhuman and degrading treatment. Ending the practice of torture was not enough, however. Assistance should also be given to the victims. Two laws had been enacted to assist torture victims who had sought refuge in the United States and the United States was the largest donor to the United Nations Voluntary Fund for Victims of Torture. The fight against torture was not simply a governmental fight but one in which NGOs, the media and individuals could serve as valuable allies.
The speaker, from the Civil Rights Division of the United States Department of Justice, addressing the issues of disability and mental health, stated that the Division took an active interest in the running of places of detention and had investigated over 300 facilities in different states and territories since the enactment of the Civil Rights of Institutionalized Persons Act in 1980. Thanks to its efforts, tens of thousands of institutionalized persons who had been living in dire conditions now received adequate physical and mental health services and proper sanitary and fire safety protections. In 1997, for example, the Civil Rights Division had entered into consent decrees with certain institutions regarding the provision of medical treatment, the use of restraints and the administration of psychotropic medication to the mentally retarded. In recent years, the Division’s work had focused on abuse and neglect in nursing homes.
34 CAT/C/SR.424.